PRIVILEGE
| Date | 01 May 1978 |
| Published date | 01 May 1978 |
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb00802.x |
PRIVILEGE
MANY jurisprudents have assumed that
privilege
is a notion
co-ordinate with
right, duty, liberty, power, immunity,
etc., and
have, therefore, placed
it
in the same table as these others. They
have differed simply on the position of such a place; some suppos-
ing a privilege to be a right, others a power and others a liberty.
My thesis is that
privilege
does not share the same
fundumentum
divisionis
as these other notions; that it is, in fact, of a different
logical order. Any one of the things covered by these other notions
can be, but need not be, a privilege. What makes anything a
privilege is a particular characteristic of the circumstances in which
it occurs. It is as mistaken to attempt to place the notion of privilege
amongst these other notions as it would be
to
attempt
e.g.
to
co-ordinate the notion of a
gift
with such notions as
cur,
house
or
bout,
etc., though any one
of
the things covered by these notions
can
be, but need not be, a gift.
Privilege
is neither the correlative nor
the opposite
of
e.g.
right,
or
duty,
any more than
gift
is the correla-
tive or opposite of
house
or
bout.
Nor is the word “privilege”
ambiguous, with a different sense corresponding to each of these
other words, any more than the word
“
gift
”
is ambiguous, with as
many meanings as there are kinds of gifts.
Furthermore,
I
shall try to show that the legal notion of
privilege
is the same as that expressed by the word “privilege” in its
everyday use.
“
Privilegium
”
indicated in Roman times one example of a kind
of law aimed specifically at singIe persons or cases, whether by
conferring an advantage,
e.g.
a right, which would be a
“
favour-
able
’’
privilege, or a disadvantage,
e.g.
a duty, which would be an
“
odious
”
privilege. For example, an act granting an inventor exclus-
ive selling rights in his invention would be
a
“favourable
privilege and an Act of Attainder an “odious” privilege.
“
Privilege
”
in its modern legal use differs, as Austin pointed out,
in that it applies to what is conferred by the law rather than to the
law which confers it, and
is
confined solely to favourable privileges.
Thus, persons who cannot be sued,
e.g.
foreign diplomats, but not
persons who cannot sue,
e.g.
enemy aliens, are said to be privileged.
“
Privilege,” both in its legal and its everyday use, indicates what
someone or something has in virtue of being singled out for
advantageous treatment.
A
privilege is necessarily reserved for a
few, not given to all; whether the few are a few individuals, a few
groups or a few occasions. There can be a privileged few, but not a
privileged many. There are privileged persons, places and classes,
privileged offices, occasions, documents and circumstances. Many
people have supposed that psychologically each
of
us has a privileged
access to his own thoughts.
1
Lectures
on
Jurisprudence,
Lecture
28
(Student’s edition,
p.
259;
cf.
p.
la).
299
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